AMENDMENT NO. 1 among ITRON, INC., as Borrower, The Subsidiary Guarantors, The Lenders and Issuing Banks Party Hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent dated as of April 24, 2009 WELLS FARGO BANK, NATIONAL...
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Exhibit
4.1
EXECUTION
VERSION
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among
ITRON,
INC.,
as
Borrower,
The
Subsidiary Guarantors,
The
Lenders and Issuing Banks Party Hereto,
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
dated
as of April 24, 2009
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
and
XXXXXXX
XXXXX LENDING PARTNERS LLC,
as
Joint Lead Arrangers and as Joint Book Managers
dated as
of April 24, 2009
Reference
is made to the Credit Agreement, dated as of April 18, 2007 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to
time, the “Credit
Agreement”; capitalized terms used but not otherwise defined herein
having the meanings given to them in the Credit Agreement), among Itron, Inc., a
Washington corporation (“Borrower”), the Subsidiary
Guarantors, the Lenders, UBS Securities LLC, as Arranger and as Syndication
Agent, Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as Swingline
Lender, as an Issuing Bank, as Administrative Agent and as Collateral Agent, and
Mizuho Corporate Bank, Ltd., as an Issuing Bank and as Documentation
Agent.
PRELIMINARY
STATEMENTS:
WHEREAS,
Borrower and the Subsidiary Guarantors have requested that the Required Lenders,
the Issuing Banks, the Swingline Lender and the Administrative Agent agree to
amend the Credit Agreement as set forth in this Amendment No. 1 (this “Amendment No. 1”);
and
WHEREAS,
Borrower, the Subsidiary Guarantors, the Lenders signatory hereto, the Issuing
Banks, the Swingline Lender and the Administrative Agent agree to amend the
Credit Agreement as set forth below and subject to the terms and conditions of
this Amendment No. 1.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION
1. Amendments to Credit
Agreement.
(a) Amendments
to Article
I. Article I of the
Credit Agreement is hereby amended in the following respects:
(i) The
following definitions are hereby inserted in Section 1.01 of the
Credit Agreement in appropriate alphabetical order:
“Amendment No. 1” shall mean
Amendment No. 1 to this Credit Agreement, among Borrower, the Subsidiary
Guarantors, the Lenders signatory thereto, the Issuing Banks, the Swingline
Lender and the Administrative Agent.
“Amendment No. 1 Effective
Date” shall mean the date Amendment No. 1 becomes effective in accordance
with its terms.
“Defaulting Lender” shall mean
any Lender that (a) has (i) defaulted in its obligation to make a Revolving Loan
or to fund its participation interests in respect of Letters of Credit or
Swingline Loans so required to be funded by it hereunder, or (ii) notified the
Administrative Agent or a Loan Party that it does not intend to satisfy any such
obligation, (b) has become insolvent or is the subject of a proceeding under
Title 11 of the United State Code, as now constituted or hereafter amended, or
any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law or the assets or management of which have been taken over by any
Governmental Authority or (c) is Controlled by or is a Subsidiary of a Person
that has become insolvent or is the subject of a proceeding under Title 11 of
the United State Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law or
the assets or management of which has been taken over by any Governmental
Authority.
“Discharged Indebtedness” shall
mean Indebtedness that Borrower has irrevocably called for redemption or
otherwise become obligated to prepay or redeem or acquire, so long as the
following has occurred in a manner satisfactory to the Administrative
Agent: (i) Borrower is irrevocably obligated to redeem or prepay or
acquire such Indebtedness within 31 days of the earlier of the date such
Indebtedness became Discharged Indebtedness or the date the deposit referred to
in clause (ii) was made (the “31 Day Period”), (ii) Borrower
has (x) deposited in an account subject to a first priority perfected Lien in
favor of the Administrative Agent, cash sufficient to redeem, prepay or acquire
such Indebtedness or (y) deposited with the trustee or a third party paying
agent for such Indebtedness an amount sufficient for Borrower to redeem, prepay
or acquire such Indebtedness; provided that if any such
Indebtedness is not cancelled, retired or repaid within the 31 Day Period, then
such Indebtedness shall cease to be, and shall for all purposes be deemed never
to have been, Discharged Indebtedness.
“Increase Effective Date” shall
have the meaning assigned to such term in Section 2.19(a).
“Increase Joinder” shall have
the meaning assigned to such term in Section
2.19(c).
“January 2009 Exchange
Transactions” shall mean the issuance by Borrower of an aggregate
2,251,951 shares of Borrower’s common stock, no par value, in exchange for, in
the aggregate, $120,984,000 principal amount of the Convertible Senior
Subordinated Notes pursuant to exchange agreements, dated January 16, 2009,
January 20, 2009, January 21, 2009, January 22, 2009, January 23, 2009 and
January 27, 2009, between Borrower and the holders of such Convertible Senior
Subordinated Notes, and the retirement of such Convertible Senior Subordinated
Notes acquired by Borrower pursuant to such exchange agreements upon closing of
such exchanges.
“Post-Increase Revolving
Lenders” shall have the meaning assigned to such term in Section
2.19(d).
“Pre-Increase Revolving
Lenders” shall have the meaning assigned to such term in Section
2.19(d).
“Qualified Equity Exchange”
shall mean the redemption, repurchase, retirement, defeasement or other
acquisition of debt securities of Borrower in exchange for Qualified Capital
Stock of Borrower and the immediate retirement or cancellation of such debt
securities upon the consummation of such exchange.
“Refinancing Indebtedness”
shall have the meaning assigned to such term in Section
6.01(b).
“Revolving Commitment Increase”
shall have the meaning assigned to such term in Section 2.19(a).
“Weighted Average Life to
Maturity” shall mean, when applied to any Indebtedness, at any date,
the quotient obtained by dividing (x) the sum of the products of the number of
years (calculated to the nearest one-twelfth) from the date of determination to
the date of each successive scheduled principal payment of such
Indebtedness multiplied by the amount of such payment, by (y) the sum of
all such payments.
(ii) The
definition of “Alternate Base Rate” set forth in Section 1.01 of the
Credit Agreement is hereby amended by (A) deleting the phrase “the greater of
(a) the Base Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 0.50%” and inserting in lieu thereof the phrase “the
greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1.50% or (c) the then
applicable Adjusted LIBOR Rate for Eurocurrency Borrowings with an Interest
Period of one month plus 1.50%”.
(iii) The
definition of “Consolidated Indebtedness” set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting the phrase “the aggregate amount
of all Indebtedness of Borrower and its Subsidiaries” set forth therein and
inserting in lieu thereof the phrase “the aggregate amount of all Indebtedness
of Borrower and its Subsidiaries (other than Discharged
Indebtedness)”.
(iv) The
definition of “Consolidated Interest Coverage Ratio” set forth in Section 1.01 of the
Credit Agreement is hereby amended by inserting the following at the end
thereof, immediately before the period: “; and provided, further, that for
purposes of determining Consolidated Interest Expense in connection with the
calculation of the Consolidated Interest Coverage Ratio, there shall be excluded
any interest paid in respect of Discharged Indebtedness that accrued between the
date such Indebtedness became Discharged Indebtedness and the date such
Discharged Indebtedness was cancelled or retired or repaid”.
(v) The
definition of “Dividend” set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting the phrase “or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for consideration any
of its Equity Interests outstanding (or any options or warrants issued by such
person with respect to its Equity Interests)” and inserting in lieu thereof the
phrase “or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for consideration (other than Qualified Capital Stock of such
person) any of its Equity Interests outstanding (or any options or warrants
issued by such person with respect to its Equity Interests)”.
(vi) The
definition of “Excess Cash Flow” set forth in Section 1.01 of the
Credit Agreement is hereby amended by (A) inserting the word “and” at the end of
clauses (f) and (v) therein, (B) deleting the word “and” at the end of clause
(g) therein, (C) deleting the phrase “; and” at the end of clause
(vi) therein and inserting a period in lieu thereof and (D) deleting
clauses (h) and (vii) therein in their entirety.
(vii) The
definition of “Senior Subordinated Note Maturity Date” set forth in Section 1.01 of the
Credit Agreement is hereby amended by (A) deleting the phrase “are repaid or
redeemed” set forth therein and inserting in lieu thereof the phrase “are
repaid, retired, acquired or redeemed” and (B) inserting the following at the
end thereof, immediately before the period: “; and provided, further, that in
the event the Senior Subordinate Notes are not refinanced in whole or in part
with Indebtedness in accordance with the terms hereof but all Senior
Subordinated Notes are repaid, retired, acquired or redeemed in accordance with
the terms hereof and are no longer outstanding on or prior to the 180th day
prior to such maturity date, then the “Senior Subordinated Note Maturity
Date” shall mean the 180th day
following the seventh anniversary of the Closing Date”.
2
(viii) Section 1.02 of the
Credit Agreement is hereby amended by (A) deleting the word “and” at the end of
clause (i) of the last sentence therein and inserting in lieu thereof a comma
and (B) inserting the following at the end of the last sentence therein,
immediately prior to the period: “and (iii) if, as of any date of
determination, there are Loans, Commitments or LC Exposure outstanding that are
denominated in more than a single Approved Currency, determinations of the
Required Class Lenders, the Required Lenders and the Required Revolving Lenders
shall be determined by reference to the Dollar Equivalent (for this purpose
only, determined based on the applicable Spot Selling Rates in effect on the
first Business Day of the then current month) of such Loans, Commitments and LC
Exposure”.
(b) Amendments
to Article
II. Article II of the
Credit Agreement is hereby amended in the following respects:
(i) Section 2.13 of the
Credit Agreement is hereby amended by deleting the phrase “(d) the assignment of
any Eurocurrency Loan or EURIBOR Loan earlier than the last day of the Interest
Period applicable thereto as a result of a request by Borrower pursuant to Section 2.16(b)” and
inserting in lieu thereof, the phrase “(d) the assignment of any Eurocurrency
Loan or EURIBOR Loan earlier than the last day of the Interest Period applicable
thereto as a result of a request by Borrower pursuant to Section 2.16(b) or as
a result of a Revolving Commitment Increase”.
(ii) Section 2.17 of the
Credit Agreement is hereby amended by inserting, at the end thereof, the
following new Section
2.17(e):
(e) Defaulting
Lenders. Notwithstanding any other provision hereof, the Swingline
Lender shall not be obligated to make any Swingline Loans at a time when a
Revolving Lender is a Defaulting Lender or the Swingline Lender reasonably
believes that any Revolving Lender may not fund its participation in such
Swingline Loans or may become a Defaulting Lender, unless the
Swingline Lender and Borrower have entered into arrangements satisfactory
to the Swingline Lender and Borrower to eliminate the Swingline Lender’s risk
with respect to the Defaulting Lender’s or potential Defaulting Lenders’
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Lender’s or potential Defaulting Lenders’ Swingline
Exposure.
(iii) Section 2.18(j) of
the Credit Agreement is hereby amended by inserting, in the first sentence
thereof, immediately after the phrase “with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld), the Issuing Bank”, the
following: “(which consent shall not be unreasonably withheld)”.
(iv) Section 2.18 of the
Credit Agreement is hereby amended by inserting, at the end thereof, the
following new Sections 2.18(n) and 2.18(o):
(n) Defaulting
Lenders. Notwithstanding any other provision hereof, the
Issuing Bank shall not be obligated to issue any Letter of Credit at a time when
a Revolving Lender is a Defaulting Lender or the Issuing Bank reasonably
believes that any Revolving Lender may not fund its participation in such
Letters of Credit or may become a Defaulting Lender, unless the Issuing Bank and
Borrower have entered into arrangements satisfactory to the Issuing Bank
and Borrower to eliminate the Issuing Bank’s risk with respect to the
Defaulting Lender’s or potential Defaulting Lenders’ participation in such
Letters of Credit, including by cash collateralizing such Defaulting Lender’s or
potential Defaulting Lenders’ LC Exposure.
(o) Maximum LC Issuance Obligations
of Issuing
Banks. Notwithstanding any other provision hereof, following
any Revolving Commitment Increase, no Issuing Bank shall be obligated to issue,
amend, renew or extend any Letter of Credit in accordance with terms hereof if,
after giving effect to such issuance, amendment, renewal or extension the sum of
(a) the Dollar Equivalent of the aggregate undrawn amount of all outstanding
Letters of Credit issued by such Issuing Bank plus (b) the Dollar
Equivalent of the aggregate principal amount of all outstanding Reimbursement
Obligations owed to such Issuing Bank would exceed the greater of (x) $100.0
million and (y) such greater amount as may have been expressly agreed upon in
writing by such Issuing Bank (it being expressly understood and agreed that such
greater amount shall not exceed the LC Commitment).
(v) Article II of the
Credit Agreement is hereby amended by inserting, at the end thereof, the
following new Section
2.19:
3
Section
2.19 Increase in Revolving
Commitments.
(a) Borrower
Request. Following the Amendment No. 1 Effective Date and
prior to the date which is five years after the Closing Date, Borrower may by
written notice to the Administrative Agent elect to request an increase to the
existing Revolving Commitments by an amount not in excess of an aggregate of (x)
$75,000,000 plus (y)
such additional amounts as may be agreed to in writing by Borrower, the Required
Revolving Lenders, the Issuing Banks, the Swingline Lender and the
Administrative Agent, and not less than $25,000,000 individually (a “Revolving Commitment
Increase”); provided that (i) no more
than three Revolving Commitment Increases may be made hereunder and (ii) no
Revolving Commitment Increase may be made if Borrower has terminated or reduced
the Revolving Commitments prior to such Revolving Commitment
Increase. Each notice of a Revolving Commitment Increase shall
specify (i) the date (each, an “Increase Effective Date”) on
which Borrower proposes that the Revolving Commitment Increase shall be
effective, which shall be a date not less than 10 Business Days (or such shorter
period as may be agreed upon by the Administrative Agent) after the date on
which such notice is delivered to the Administrative Agent and (ii) the identity
of each person to which Borrower proposes any portion of such increased
Revolving Commitments be allocated and the amounts of such allocations; provided that (A) each person
that participates in any Revolving Commitment Increase shall have been approved
by the Administrative Agent, each Issuing Bank and the Swingline Lender and (B)
for the avoidance of doubt, any existing Lender approached by Borrower to
participate in such Revolving Commitment Increase may elect to decline to
participate in such Revolving Commitment Increase in its sole
discretion.
(b) Conditions. The
Revolving Commitment Increase shall become effective, as of such Increase
Effective Date, subject to the prior or concurrent satisfaction of each of the
following conditions precedent:
(i) each of
the conditions set forth in Section 4.02 shall be
satisfied as of such Increase Effective Date;
(ii) no
Default shall have occurred and be continuing or would result from any
Borrowings to be made on such Increase Effective Date;
(iii) after
giving pro forma effect to any Borrowings to be made on the Increase Effective
Date, and to any change in Consolidated EBITDA and any increase or decrease in
Indebtedness resulting from the consummation of Investments or the incurrence or
cancellation, retirement or repayment of Indebtedness following the date of the
most recent financial statements delivered pursuant to Section 5.01(a) or
(b), Borrower
shall be in compliance with each of the covenants set forth in Section 6.10;
(iv) Borrower
shall make any payments required pursuant to Section 2.13 in
connection with any assignment of Revolving Loans required pursuant to Section
2.19(d);
(v) Borrower
shall have paid (A) to the extent invoiced, all reasonable out-of-pocket
expenses incurred by the Agents and their Affiliates in connection with such
Revolving Commitment Increase and (B) all fees and expense reimbursement amounts
agreed to by Borrower in connection with such Revolving Commitment Increase;
and
(vi) Borrower
shall deliver or cause to be delivered any officers’ certificates, legal
opinions or other documents reasonably requested by the Administrative Agent in
connection with any such Revolving Commitment Increase.
(c) Terms of Increased Revolving
Commitments and Revolving Loans; Increase in LC Commitment and Swingline
Commitment; Increase in Applicable Margins and Applicable Fees; Increase
Joinder.
(i) Subject
to clause (ii) below, the terms and provisions of the increased Revolving
Commitments and the Revolving Loans made pursuant to such increased Revolving
Commitments shall be identical to the terms of the existing Revolving
Commitments and Revolving Loans, and after any such Revolving Commitment
Increase such increased Revolving Commitments shall be Revolving Commitments
(or, in the case of a Revolving Commitment Increase to be provided by an
existing Revolving Lender, shall constitute an increase in such Revolving
Lender’s existing Revolving Commitment) for all purposes hereunder.
(ii) Subject
to the agreement of Borrower and the Lenders providing such Revolving Commitment
Increase, the Applicable Margins and Applicable Fees in respect of the Revolving
Loans and Revolving Commitments subject to the Revolving Commitment Increase may
be increased above the Applicable Margins and Applicable Fees applicable to the
Revolving Loans and Revolving Commitments before giving effect to the Revolving
Commitment Increase; provided that in the case of
such an increase (A) the Applicable Margins and Applicable Fees in respect of
the Revolving Loans and Revolving Commitments in effect before the Revolving
Commitment Increase shall be automatically increased such that the Applicable
Margin and Applicable Fees for all Revolving Loans and Revolving Commitments is
the same, (B) the Applicable Margins in respect of the Swingline Loans shall be
increased by a like amount and (C) any customary arrangement or commitment fees
payable to one or more arrangers (or their Affiliates) of the Revolving
Commitment Increase shall not constitute an increase in Applicable Margins or
Applicable Fees in respect of the Revolving Loans and Revolving Commitments.
4
(iii) In
connection with any Revolving Commitment Increase, (A) the LC Commitment shall
be automatically increased to an amount equal to 85% of the aggregate amount of
the Revolving Commitments after giving effect to such Revolving Commitment
Increase (provided that
the obligation of any Issuing Bank to issue, amend, renew or extend any Letter
of Credit in accordance with terms hereof shall be subject to Section 2.18(o)) and
(B) the Swingline Commitment shall be automatically increased to an amount equal
to 13% of the aggregate amount of the Revolving Commitments after giving effect
to such Revolving Commitment Increase (provided that in the case of
each of the foregoing going clauses (A) and (B), the amount of such increase
shall be rounded up to the nearest $1,000,000).
(iv) Each
Revolving Commitment Increase shall be effected by a joinder agreement (an
“Increase Joinder”)
executed by Borrower, the Administrative Agent, each Issuing Bank, the Swingline
Lender and each person making such increased Revolving Commitment, in form and
substance reasonably satisfactory to each of them. The Increase
Joinder may, without the consent of the Required Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section
2.19. In addition, all references in Loan Documents to
Revolving Commitments and Revolving Loans shall be deemed, unless the context
otherwise requires, to include such increased Revolving Commitments and the
Revolving Loans made pursuant to increased Revolving Commitments.
(d) Adjustment of Revolving
Loans. On each Increase Effective Date, each of the Revolving
Lenders having a Revolving Commitment prior to such Increase Effective Date (the
“Pre-Increase Revolving
Lenders”) shall be deemed to have assigned (automatically and,
subject to receipt of the purchase price therefor as provided below, without
further act) to each person which is making any of the increased Revolving
Commitments on the Increase Effective Date (the “Post-Increase Revolving
Lenders”), and such Post-Increase Revolving Lenders shall be required to
purchase from each Pre-Increase Revolving Lender, at the principal amount
thereof (to the extent funded) and shall be deemed to have assumed
(automatically, and, subject to payment of the purchase price therefor, without
further act), such interests in the Revolving Loans and participation interests
in LC Exposure and Swingline Loans outstanding on such Increase Effective Date
as shall be necessary in order that, after giving effect to all such assignments
and assumptions, such Revolving Loans and participation interests in LC Exposure
and Swingline Loans will be held by Pre-Increase Revolving Lenders and
Post-Increase Revolving Lenders ratably in accordance with their Revolving
Commitments after giving effect to such increased Revolving Commitments (all
such payments to be made by the Post-Increase Revolving Lenders to the
Administrative Agent for the benefit of the Pre-Increase Revolving Lenders for
distribution to the Pre-Increase Revolving Lenders or as otherwise set forth
below). The minimum assignment amounts and the processing and
recordation fee specified in Section
10.04(b) shall not apply to assignments effected pursuant to the
immediately preceding sentence. If there is a new Borrowing of Revolving
Loans on such Increase Effective Date, the Revolving Lenders after giving effect
to such Revolving Commitment Increase shall make such Revolving Loans in
accordance with Section 2.01(b)
(provided that
notwithstanding any other provision hereof, but subject to the other provisions
of this Section
2.19(d), the Administrative Agent may offset the amount of any payments
required to be made by any Pre-Increase Revolving Lender in connection with such
new Borrowing of Revolving Loans against the amount of any payments received by
the Administrative Agent for the benefit of such Pre-Increase Revolving Lender
pursuant to this Section 2.19(d) in
connection with such Revolving Commitment Increase (such payments to be applied
by the Administrative Agent to fund such new Borrowing), and such Pre-Increase
Revolving Lender shall be deemed to have funded its ratable portion of such new
Borrowing to the extent of such offset).
(e) Equal and Ratable
Benefit. The Revolving Loans and Revolving Commitments
established pursuant to this Section 2.19 shall
constitute Loans and Commitments under, and shall be entitled to all the
benefits afforded by, this Agreement and the other Loan Documents, and shall,
without limiting the foregoing, benefit equally and ratably from the Guarantees
and security interests created by the Security Documents. The Loan
Parties shall take any actions reasonably required by the Administrative Agent
to ensure and/or demonstrate that the Lien and security interests granted by the
Security Documents continue to be perfected under the UCC or otherwise after
giving effect to the establishment of any such new Revolving
Commitments.
(c) Amendment
to Section
5.10(b). Section 5.10(b) of the Credit
Agreement is hereby amended by deleting the first sentence thereof in its
entirety and inserting in lieu thereof, the following: “With respect
to any person that becomes a Subsidiary after the Closing Date, promptly (and in
any event within 30 days after such person becomes a Subsidiary (it being
understood that for purposes of this clause (b), any Subsidiary with respect to
which the second sentence of this clause (b) applies shall be deemed to have
become a Subsidiary at such time as the provisions of the second sentence of
this clause (b) shall cease to apply) (i) deliver to the Collateral Agent the
certificates, if any, representing all of the Equity Interests of such
Subsidiary held by any Loan Party, together with undated stock powers or other
appropriate instruments of transfer executed and delivered in blank by a duly
authorized officer of the holder(s) of such Equity Interests, and all
intercompany notes owing from such Subsidiary to any Loan Party together with
instruments of transfer executed and delivered in blank by a duly authorized
officer of such Loan Party and (ii) cause such new Subsidiary (A) to execute a
Joinder Agreement or, in the case of a Foreign Subsidiary, or such comparable
documentation compatible with the laws of such Foreign Subsidiary’s jurisdiction
in form and substance reasonably satisfactory to the Administrative
Agent, to become a Subsidiary Guarantor, and a joinder agreement to the
applicable Security Agreement, substantially in the form annexed thereto or, in
the case of a Foreign Subsidiary, execute a security agreement compatible with
the laws of such Foreign Subsidiary’s jurisdiction in form and substance
reasonably satisfactory to the Administrative Agent, and (B) to take all actions
necessary or advisable in the opinion of the Administrative Agent or the
Collateral Agent to cause the Lien created by the applicable Security Agreement
to be duly perfected to the extent required by such agreement in accordance with
all applicable Requirements of Law, including the filing of financing statements
in such jurisdictions as may be reasonably requested by the Administrative Agent
or the Collateral Agent.”
5
(d) Amendments
to Article VI. Article VI of the
Credit Agreement is hereby amended in the following respects:
(i) Section 6.01(b) of
the Credit Agreement is hereby amended by (A) deleting the phrase “refinancings
of Indebtedness described in the foregoing clause (i)” in clause (ii)
therein and inserting in lieu thereof the phrase “refinancings of Indebtedness
described in the foregoing clause (i), and subsequent refinancings thereof”, (B)
deleting clause (B) of the proviso thereto and inserting in lieu thereof the
following: “(B) such refinancing Indebtedness (x) has a final
maturity date equal to or later than the earlier of (1) the final scheduled
maturity date of the Indebtedness being so refinanced and (2) the 180th day
following the seventh anniversary of the Closing Date and (y) has a Weighted
Average Life to Maturity at the time incurred which is not less than the
Weighted Average Life to Maturity that would result if all payments of principal
on such refinancing Indebtedness were due on the date 180 days following the
seventh anniversary of the Closing Date (provided that, in the case of
this subclause (y), such refinancing Indebtedness does not provide for any
required payments of principal, whether by way of amortization, sinking fund,
mandatory prepayment or redemption provisions, the exercise of conversion or put
rights by the holders thereof, or otherwise (other than customary change of
control offer provisions), prior to the 180th day
following the seventh anniversary of the Closing Date) and” and (C) inserting,
at the end thereof, the following: “and provided, further, that
Indebtedness satisfying the criteria described in the immediately preceding
proviso that is incurred solely for the purpose of refinancing Indebtedness
described in the foregoing clauses (i) and (ii) (“Refinancing Indebtedness”)
shall be permitted to be incurred under this Section 6.01(b) up to 31 days
prior to the repayment, repurchase, redemption or other acquisition of the
Indebtedness being so refinanced so long as (A) the Indebtedness being so
refinanced constitutes Discharged Indebtedness immediately upon the incurrence
of the Refinancing Indebtedness and (B) all such Discharged Indebtedness is
cancelled, retired or repaid within 31 days of the incurrence of the Refinancing
Indebtedness;”.
(ii) Section 6.02(l) of
the Credit Agreement is hereby amended by (A) inserting at the beginning
thereof, the following: “(i)” and (B) inserting the following, at the end
thereof, immediately before the semicolon: “, (ii) Liens granted to
the Swingline Lender pursuant to Section 2.17(e) to cash
collateralize the Swingline Exposure of Defaulting Lenders and potential
Defaulting Lenders and (iii) Liens granted to Issuing Banks pursuant to Section 2.18(n) to
cash collateralize the LC Exposure of Defaulting Lenders and potential
Defaulting Lenders”.
(iii) Section 6.10(a) of
the Credit Agreement is hereby amended by deleting such section in its entirety
and inserting in lieu thereof the following new Section
6.10(a):
(a) Maximum Total Leverage
Ratio. Permit the Total Leverage Ratio, as at the end of any
Test Period ending during any period set forth in the table below, to exceed the
ratio set forth opposite such period in the table below:
|
Test Period
|
Maximum Total Leverage Ratio
|
|
Closing
Date through September 30, 2007
|
6.50
to 1.0
|
|
October
1, 2007 through June 30, 2008
|
6.25
to 1.0
|
|
July
1, 2008 through September 30, 2008
|
6.00
to 1.0
|
|
October
1, 2008 through December 31, 2008
|
5.50
to 1.0
|
|
January
1, 2009 through September 30, 2009
|
4.75
to 1.0
|
|
October
1, 2009 through December 31, 2009
|
4.50
to 1.0
|
|
January
1, 2010 through March 31, 2010
|
4.25
to 1.0
|
|
April
1, 2010 through June 30, 2010
|
4.00
to 1.0
|
|
July
1, 2010 through September 30, 2010
|
3.75
to 1.0
|
|
October
1, 2010 through December 31, 2010
|
3.50
to 1.0
|
|
January
1, 2011 through March 31, 2011
|
3.25
to 1.0
|
|
April
1, 2011 through June 30, 2011
|
3.00
to 1.0
|
|
July
1, 2011 through September 30, 2011
|
2.75
to 1.0
|
|
October
1, 2011 through December 31, 2011
|
2.50
to 1.0
|
|
January
1, 2012 and thereafter
|
2.25
to
1.0
|
(iv) Section 6.10(b) of
the Credit Agreement is hereby amended by deleting such section in its entirety
and inserting in lieu thereof the following new Section 6.10(b):
6
(b) Minimum Interest Coverage
Ratio. Permit the Consolidated Interest Coverage Ratio, for
any Test Period ending during any period set forth in the table below, to be
less than the ratio set forth opposite such period in the table
below:
|
Test Period
|
Minimum Interest Coverage
Ratio
|
|
Closing
Date through June 30, 2007
|
2.00
to 1.0
|
|
July
1, 2007 through December 31, 2007
|
2.125
to 1.0
|
|
January
1, 2008 through June 30, 2008
|
2.25
to 1.0
|
|
July
1, 2008 through December 31, 2008
|
2.50
to 1.0
|
|
January
1, 2009 through December 31, 2009
|
3.00
to 1.0
|
|
January
1, 2010 through March 31, 2010
|
3.25
to 1.0
|
|
April
1, 2010 through June 30, 2010
|
3.50
to 1.0
|
|
July
1, 2010 through December 31, 2010
|
3.75
to 1.0
|
|
January
1, 2011 through December 31, 2011
|
4.50
to 1.0
|
|
January
1, 2012 and thereafter
|
5.00
to
1.0
|
(v) Section 6.11(a) of the Credit
Agreement is hereby amended by inserting, immediately prior to clause (w)
therein, the following new clause (v): “(v) for consideration
consisting solely of Qualified Capital Stock of Borrower issued pursuant to a
Qualified Equity Exchange (it being expressly understood and agreed that for
purposes of this Section 6.11(a), the
January 2009 Exchange Transactions shall be deemed to be Qualified Equity
Exchanges made pursuant to this clause (v));”.
(e) Amendments
to Annexes to Credit Agreement. The Annexes to
the Credit Agreement are hereby amended by deleting Annex I attached
thereto and inserting in lieu thereof Annex I attached
hereto.
SECTION
2. Conditions
to Effectiveness. This Amendment
No. 1 shall become effective immediately upon satisfaction of all of the
conditions set forth below in this Section 2 (such
effective date, the “Amendment
No. 1 Effective Date”) (provided that if all such
conditions are not satisfied by June 1, 2009, this Amendment No. 1 shall
automatically terminate without further action or notice and shall be of no
further force or effect).
(a) Execution
of Counterparts. The Administrative
Agent shall have received counterparts of this Amendment No. 1, duly
executed by each of the Loan Parties, the Required Lenders, each Issuing Bank,
the Swingline Lender and the Administrative Agent.
(b) Legal
Opinion. The
Administrative Agent shall have received, on behalf of itself and the Lenders, a
written opinion of Xxxxxxx Coie LLP, special counsel for the Loan Parties, in
each case, addressed to the Administrative Agent and the Lenders and dated the
Amendment No. 1 Effective Date, and covering such matters relating to this
Amendment No. 1 and the Loan Documents as the Administrative Agent shall
reasonably request, which opinions shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(c) Officers’
Certificates. The
Administrative Agent shall have received (i) a certificate of the Secretary or
Assistant Secretary (or other Responsible Officer) of each Loan Party dated the
Amendment No. 1 Effective Date and certifying that (A) attached thereto is a
true and complete copy of resolutions duly adopted by the board of directors,
general partners, members or managers, as applicable, of such Loan Party
authorizing the execution, delivery and performance of this Amendment No. 1 and
that such resolutions have not been modified, rescinded or amended and are in
full force and effect and (B) attached thereto are true and complete copies
of all other documents evidencing necessary organizational action and
governmental and other material third party approvals and consents, if any, with
respect to this Amendment No. 1 and the matters and transactions contemplated
hereby, and (ii) such other documents as Xxxxx Fargo and Xxxxxxx Xxxxx Lending
Partners LLC (collectively, the “Joint Lead Arrangers”) or the
Administrative Agent may reasonably request.
7
(d) Payment
of Fees and Expenses of the Administrative Agent and the
Joint
Lead Arrangers. Borrower shall have paid (i) to
the extent invoiced, all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates in connection with the Loan Documents and this
Amendment No. 1, including, without limitation, the fees, charges and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Administrative Agent and (ii) all fees and expense reimbursement amounts
agreed to with the Joint Lead Arrangers in connection with this Amendment No.
1.
(e) Payment of
Amendment Fees. In consideration
of the Required Lenders entering into this Amendment No. 1, each Lender that
delivered its duly executed counterpart to this Amendment No. 1 to the
Administrative Agent on or before 5:00 P.M. New York City time on April 21, 2009
(each, a “Consenting
Lender”), shall have received amendment fees (the “Amendment Fees”) in an aggregate amount
equal to 0.50% times the aggregate
principal amount of such Consenting Lender’s outstanding Dollar Term Loans, Euro
Term Loans and Revolving Commitments under the Credit Agreement on the
Amendment No. 1 Effective Date. Amendment Fees payable in respect of
Term Loans shall be paid in the applicable Approved Currency in which such Term
Loans are denominated. Amendment Fees payable in respect of Revolving
Commitments shall be paid in Dollars.
SECTION
3. Representations
and Warranties. Each Loan Party
represents and warrants to the Administrative Agent and each Lender as of the
Amendment No. 1 Effective Date as follows:
(a) Power;
Authorization; Enforceable Obligations. Each Loan Party
has the requisite power and authority to enter into this Amendment No.
1. The execution, delivery and performance of this Amendment No. 1
has been duly authorized by all necessary action on the part of each Loan
Party. Each of this Amendment No. 1 and each other Loan Document
constitutes a legal, valid and binding obligation of each Loan Party party
hereto or thereto, as the case may be, enforceable against each such Loan Party
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) No Legal
Bar. The execution,
delivery and performance of this Amendment No. 1 by the Loan Parties does not
and, to the knowledge of the Loan Parties, will not (i) violate any provision of
any law or any governmental rule or regulation applicable to any Loan Party, or
any certificate of incorporation, certificate of formation, by-laws, operating
agreement or other organizational document of any Loan Party, or any order,
judgment or decree of any court or other Governmental Authority binding on any
Loan Party, (ii) violate any provision of, or result in any default or breach
under, any contractual obligation of any Loan Party except to the extent such
violation, default or breach could not reasonably be expected to have a Material
Adverse Effect, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of any Loan Party (other than the
Liens created by the Loan Documents) or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
contractual obligation of any Loan Party, except for such approvals or consents
which have been obtained on or before the Amendment No. 1 Effective Date (other
than any such approvals or consents the failure of which to obtain will not have
a Material Adverse Effect).
(c) Accuracy
of Representations and Warranties. Each of the
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) on and as of the
Amendment No. 1 Effective Date with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date, in which case they are true and correct in all
material respects (or, if qualified as to materiality” or “Material Adverse
Effect”, true and correct in all respects) as of such earlier date.
(d) No
Default. On the Amendment
No. 1 Effective Date, and after giving effect to this Amendment No. 1, no
Default has occurred and is continuing.
SECTION
4. Validity of Obligations and
Liens; Grant of Security Interest.
(a) Validity
of Obligations. Each Loan Party
acknowledges and agrees that (i) each Loan Party is indebted to the Lenders, the
Issuing Banks and the Agents for the Obligations, without defense, counterclaim
or offset of any kind, and each Loan Party hereby ratifies and reaffirms the
validity, enforceability and binding nature of such Obligations and (ii) no Loan
Party has as of the Amendment No. 1 Effective Date any claim, right or cause of
action of any kind against any Lender, Issuing Bank or Agent or any of such
Lender’s, Issuing Banks’ or Agents’ respective present or former subsidiaries,
Affiliates, officers, directors, employees, attorneys or other representatives
or agents in connection with this Amendment No. 1, the Credit Agreement and the
other Loan Documents, or the transactions contemplated hereby or
thereby.
(b) Validity
of Liens. Each Loan Party
hereby ratifies and reaffirms the validity and enforceability (without defense,
counterclaim or offset of any kind) of the Liens and security interests granted
to secure the Obligations by such Loan Party to any Agent, for the ratable
benefit of the Secured Parties, pursuant to the Security Documents to which such
Loan Party is a party.
SECTION
5. Governing
Law. This Amendment
No. 1 shall be governed by, and construed in accordance with, the laws of the
State of New York (including without limitation Section 5-1401 of the
General Obligations Law of the State of New York), without regard to conflicts
of laws principles.
8
SECTION
6. Execution
in Counterparts. This Amendment
No. 1 may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of this Amendment
No. 1 by telecopier or in PDF format via electronic mail shall be effective as
delivery of an original executed counterpart of this Amendment No.
1.
SECTION
7. Continuing
Effectiveness. Except as
modified by this Amendment No. 1, the Credit Agreement shall remain in full
force and effect and each is hereby ratified and confirmed in all respects, and
this Amendment No. 1 shall be a Loan Document for all purposes. This
Amendment No. 1 shall not constitute an amendment or waiver of any
provision of the Credit Agreement except as expressly stated herein, and shall
not be construed as an amendment, waiver or consent to any action on the part of
any Company that would require an amendment, waiver or consent of any of the
Lenders, Issuing Banks or Agents except as expressly stated herein.
SECTION
8. WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS
AMENDMENT NO. 1, ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS AMENDMENT NO. 1 AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT NO.
1 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION
9. Headings. Section and
subsection headings in this Amendment No. 1 are included herein for convenience
of reference only and shall not constitute a part of this Amendment No. 1 for
any other purpose or be given any substantive effect.
SECTION
10. Successors
and Assigns. This
Amendment No. 1 shall be binding upon and inure to the benefit of each of the
Loan Parties and each of their respective successors and assigns, and upon the
Agents, the Issuing Banks and the Lenders and their successors and
assigns. No Loan Parties’ rights or obligations hereunder nor any
interest therein may be assigned or delegated without the prior written consent
of all Lenders and the Administrative Agent.
[Signature pages
follow]
9
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
executed by their officers thereunto duly authorized as of the date first above
written.
ITRON,
INC.
By:
/s/ Xxxxxx X.
Xxxxxxxxxx
Name: Xxxxxx X.
Xxxxxxxxxx
Title: Senior V.P. and Chief
Financial Officer
ITRON
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title: Vice
President
ITRON
ENGINEERING SERVICES, INC.
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: V.P. and
Treasurer
ITRON
BRAZIL I, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title: Manager
ITRON
BRAZIL II, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title: Manager
ITRON US
GAS LLC
By: Itron,
Inc., its Sole Member
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X Xxxxxxxx
Title: Senior V.P. and
Corporate Secretary
[Signature
Page to Amendment No. 1]
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, as an Issuing Bank,
as Swingline Lender and as a Lender
By: /s/ Xxx Xxxx
Name: Xxx Xxxx
Title: V.P.
[Signature
Page to Amendment No. 1]
MIZUHO
CORPORATE BANK, LTD., as an Issuing Bank and as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: Director
[Signature
Page to Amendment No. 1]
ANNEX
I
[See
Attached]
Annex
I
Applicable
Margin
|
Dollar
Revolving Loans
|
Euro
Revolving Loans
|
GBP
Revolving Loans
|
Dollar
Term Loans
|
Euro
Term Loans
|
GBP
Term Loans
|
Swingline
Loans
|
||||
|
Total
Leverage Ratio
|
Eurocurrency
|
ABR
|
EURIBOR
|
Eurocurrency
|
Eurocurrency
|
ABR
|
EURIBOR
|
Eurocurrency
|
ABR
|
Applicable
Fee
|
|
Level I
>
4.00 to 1.0
|
3.75%
|
2.75%
|
3.75%
|
3.75%
|
3.75%
|
2.75%
|
3.75%
|
3.75%
|
2.75%
|
0.625%
|
|
Level II
≥
3.50 to 1.0 and ≤ 4.00 to 1.0
|
3.50%
|
2.50%
|
3.50%
|
3.50%
|
3.50%
|
2.50%
|
3.50%
|
3.50%
|
2.50%
|
0.50%
|
|
Level III
≥
2.75 to 1.0 and < 3.50 to 1.0
|
3.25%
|
2.25%
|
3.25%
|
3.25%
|
3.50%
|
2.50%
|
3.50%
|
3.50%
|
2.25%
|
0.50%
|
|
Level IV
<
2.75 to 1.0
|
3.00%
|
2.00%
|
3.00%
|
3.00%
|
3.50%
|
2.50%
|
3.50%
|
3.50%
|
2.00%
|
0.50%
|
Each
change in the Applicable Margin or Applicable Fee resulting from a change in the
Total Leverage Ratio shall be effective with respect to all Revolving Loans and
Letters of Credit outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.01(a)
or (b) and
Section
5.01(c), respectively, indicating such change until the date immediately
preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the
foregoing, (a) the Total Leverage Ratio shall be deemed to be in Level I (i) at
any time during which Borrower has failed to deliver the financial statements
and certificates required by Section 5.01(a) or
(b) and Section 5.01(c),
respectively, and (ii) at any time during the existence of an Event of Default
and (b) the Total Leverage Ratio shall be deemed to be in Level II during the
period beginning on the Amendment No. 1 Effective Date and ending on the earlier
of (i) the date Borrower delivers the financial statements required by Section 5.01(b) for
the fiscal quarter ended March 31, 2009 and (ii) the date by which Borrower is
required to deliver financial statements pursuant to Section 5.01(b) for
the fiscal quarter ended March 31, 2009.
In the
event that any financial statement delivered pursuant to Section 5.01(a) or
(b) or any
Compliance Certificate is inaccurate (regardless of whether this Agreement or
the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”) than the
Applicable Margin applied for such Applicable Period, then (i) Borrower shall
immediately deliver to the Administrative Agent a corrected financial statement
and a corrected Compliance Certificate for such Applicable Period, (ii) the
Applicable Margin shall be determined based on the corrected Compliance
Certificate for such Applicable Period, and (iii) Borrower shall immediately pay
to the Administrative Agent the accrued additional interest owing as a result of
such increased Applicable Margin for such Applicable Period, which payment shall
be promptly applied by the Administrative Agent in accordance with Section
2.14. None of the foregoing shall limit the rights of the
Administrative Agent or the Lenders with respect to Section 2.06(d) or
Article
VIII.
A-I
